Sindell Law Offices E-Min Newsletter BREAKING NEWS - English Article #4

   Here it is, the bad, and a little good, now further complicating the L-1 and H-1b visa process. 

The Senate and House this weekend passed an Omnibus Appropriations bill that includes H-1B and L provisions.  Please note that the H-1B exemption goes into effect 90 days after enactment.) We expect the President to sign the bill in early December. 


Non Immigrant L-1 Visa Category.

There have been a lot of discussions of limiting L-1b visa holders from working at the worksite of another employer. The new section prevents an L-1b visa holder from being primarily stationed at the worksite of another employer in cases where:

(1) The L-1B visa holder will be controlled and supervised by an unaffiliated employer, or

(2) The placement of the L-1B visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.

The above modification to the law applies to initial, extended or amended petitions filed on or after the effective date.

L-1 blanket employees only had to have six months of work experience in order to qualify for the L-1 blanket. This provision was now struck from the law so that L-1 blanket petitioners now need to show one year of prior work experience in the qualifying organization.


H-1b visa qualifications and criteria changing dramatically.

Here is a rundown of the changes.

a)     There was a non-displacement attestation on the LCA for H-1b requiring H-1b “dependent” employers to attest that they have not displaced US workers preceding the employment of an H-1b worker.

b)     BIG CHANGE. The new fee for each petition is $1500.00 per petition. If the employer has less than 25 full-time employees employed in the U.S., the fee will be half or $750.00. THIS PROVISION WILL TAKE EFFECT AS SOON AS THE PRESIDENT SIGNS IN THE BEGINNING OF DECEMBER. IF ANYONE WISHES TO FILE AN H-1b petition, they should do so immediately.

c.)  Employers must pay 100% of the prevailing wage for an H-1b position. However, this section also mandates that where the DOL uses or makes available to employers a governmental survey to determine prevailing wage, such survey shall provide 4 levels of wages commensurate with experience, education, and the level of supervision. If a 2 level wage survey is used, this section provides a formula for calculating the 2 additional intermediate levels.


Department of Labor Investigative Authorities

i) Reinstates and makes permanent the ability of DOL to initiate an investigation of an employer if there is reasonable cause that the employer is not in compliance with this subsection. The Secretary of Labor must personally certify that reasonable cause exists and must approve the investigation. The investigation may be initiated for reasons other than completeness and obvious inaccuracies by the employer.

ii) Permits the DOL to conduct an investigation if it receives credible information from a known source likely to have knowledge of an employer's practices or conditions. The information must provide reasonable cause that the employer has committed a willful failure to meet a condition, or has committed a substantial failure to meet a condition that affects multiple employers.

iii) Directs the DOL to create procedures for providing information that may be used as the basis of an investigation.

iv) An investigation under subsection (ii) must be from information that originates from a source other than DOL or was lawfully obtained by DOL during another DOL investigation.

v) Information provided to the DOL by the employer for purposes of securing an H-1B employee shall not be considered a receipt of information under this subsection.

vi) No investigation or related hearing may be conducted unless the information is received within 12 months after the date of the alleged failure.

vii) Directs DOL to provide notice to an employer prior to the commencement of an investigation with limited exception.

viii) An investigation by DOL may last for 60 days, and if there is evidence of a violation, DOL shall provide the employer with notice of the determination and an opportunity for a hearing. The hearing must take place within 120 days of the determination and a finding must be made within 120 days of the hearing.

b) Good Faith Compliance-This section would modify INA §212(n)(2) so that an employer is deemed to have complied with the section, notwithstanding a technical or procedural failure to meet such requirements, if there was a good faith to comply with the requirements. This good faith clause shall not apply if DOL has explained the basis of the failure or if the employer has been given time to correct the failure and has failed to do so.

Under this subsection, an employer will not be assessed fines or penalties for failure to pay the prevailing wage if he can establish that the manner in which the prevailing wage was calculated was consistent with recognized industry standards and practices.


THE ONE PIECE OF GOOD NEWS:

Exemption of certain aliens from numerical limitations on H-1B nonimmigrants.

a) An alien who has earned a Master's or higher degree from a U.S. institution of higher education will be exempted from the H-1b cap. This exemption is capped at 20,000 per fiscal year.


ANOTHER FEE!!!!

Fraud Prevention and Detection Fee

A new $500 fraud fee. Such fee will be in addition to other fees and will apply to employers filing either an initial petition for an H-1B or L visa or for a change of status petition. A $500 fraud fee will also be charged for an alien filing a visa application abroad for an L blanket petition. The fee will be imposed only on principal aliens.

THIS FEE ALSO TAKES EFFECT IMMEDIATELY, PROBABLY EARLY DECEMBER.